Rangiah J
In this matter the Court was asked to answer a separate question on whether native title was wholly extinguished over land and waters (or any part) as a result of a previous exclusive possession act under the Native Title Act 1993 (Cth)(NTA). The principal proceeding concerned an application for a determination of native title by the Wakka Wakka People over an area of land encompassing the towns of Kingaroy and Murgon in the South Burnett region of Queensland.
The applicants were Florence Bell and others on behalf of the Wakka Wakka People #3. The respondents were the State of Queensland (State), Gympie Regional Council, North Burnett Regional Council and others named in the Schedule.
Background
Mirrimbeena Holdings Pty Ltd (Mirrimbeena) holds a permit to occupy a parcel of land within the claim area and asserted that native title has been wholly or partially extinguished in relation to that parcel of land and two adjoining parcels as a consequence of “previous exclusive possession acts” within the meaning of s 23B of the Native Title Act 1993 (Cth)(NTA). The claimants and the State disagreed.
On 12 February 2019, the Court ordered that the claim area be separated into two parts, Part A and Part B, with Part B comprised of the 3 parcels of land in dispute, and a separate question be decided:
"Was native title wholly extinguished over the land and waters (or any part of the land and waters) now comprising [the Part B area] as a result of a previous exclusive possession act within the NTA?"
The issues
The Court noted that the party asserting extinguishment has the onus of proving the nature and content of the extinguishing acts.Mirrimbeena claimed that a pipeline, cattle dip, rest area facilities, stock watering infrastructure and a stock route were established by the State, a local government or a statutory authority of the State in Part B.
Consideration
The Court noted that the evidence concerning the works was vague and uncertain because of the time that has passed since they were constructed or established:
Lot 35 on BO391 (an area of just over 2 hectares) is a reserve for the purpose of local government and its sub-purpose is "stock control and health' gazetted on 7 April 1990.
Lot 36 on BO391 has an area of 0.2 hectares and was gazetted as a “Recreation (Rest Area)” reserve on 14 July 1962.
Lot 44 on BO391 was gazetted as a “Reserve for Camping and Water” under the control of the Wondai Shire Council on 14 February 1953. It is currently subject to the permit to occupy granted to Mirrimbeena.
Previous exclusive possession acts under the NTA
The Court noted that the NTA confirms the extinguishment of native title by various kinds of acts. It also allows States and Territories to legislate in relation to extinguish native title in relation to certain acts attributable to them.
Section 23B(7) of the NTA defines an act that is valid and consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996 as a previous exclusive possession act. Public work is defined in s 253 of the NTA. The extinguishment of native title by public work attributable to the State, local governments and statutory authorities of the State is confirmed by s 21 the Native Title (Queensland) Act 1993 (Qld).
Having considered the evidence and submissions of the parties, Rangiah J found that:
the stock dip on Lot 35 did not fall within the definition of 'public work' and is not a previous exclusive possession act.
no public works were constructed or established on Lot 36.
no public work consisting of a stock route was established over Lot 44.
the windmill and water tank were not constructed as public works and were not previous exclusive possession acts.
the construction and establishment of the pipeline and an associated easement are previous exclusive possession acts within s 23B(7) of the NTA which extinguished native title in relation to the land on which they are situated. Native title is not otherwise extinguished by any previous exclusive possession act over Lot 44.
Orders
The separate question be answered as follows:
Native title is extinguished over the part of Lot 44 comprising Easements A and B on Plan BO391 shown in annexure PH13 to the affidavit of Peter Hutchinson filed on 15 April 2019 by a previous exclusive possession act within the meaning of s 23B of the NTA. Native title is not otherwise extinguished by any previous exclusive possession act within the meaning of s 23B of the NTA over any part of Lot 44 on BO391, Lot 35 on BO108 or Lot 36 on BO391.
There will be no order as to costs.